Court of Appeal: Judges reject solicitor’s appeal following finding of professional misconduct

The Court of Appeal has dismissed the appeal of a Cork solicitor who was found guilty of professional misconduct by the Solicitors Disciplinary Tribunal after he threatened to destroy files for the non-payment of fees which were not actually owed to him.

Background

Barry Sheehan acted on behalf of Bernard Bingham and Viola Bingham in a medical negligence claim arising from the death of their son. The case was taken on in 2006 on a contingency fee basis. In February 2008, he wished to change the contract and sought a fixed hourly rate, though the retainer remained on a contingency fee basis. The Binghams declined to sign the contract and he treated his retainer as, thereby, terminated. He applied to the High Court to come off record in the proceedings and he was granted leave to do so.

In May 2008, Mr Sheehan served a bill of costs on the Binghams in the sum of €37,725.44 for professional fees and reimbursement of certain outlays. The Binghams refused to pay him anything on the grounds that, in accordance with their retainer, no fees were due to him.

He retained their files on foot of a solicitor’s retaining lien at common law for unpaid fees, and he sued them in the Circuit Court to recover the unpaid legal fees and outlays. They counterclaimed in professional negligence and breach of contract, seeking damages and for the delivery up of their files so that they might continue to prosecute their medical negligence proceedings as lay litigants. Her Honour Judge Flanagan dismissed the action, stating that Mr Sheehan “failed to prove his claim” and dismissed the counterclaim.

Mr Sheehan appealed. However, when the matter came on for hearing before the High Court, he withdrew that appeal and the order of the Circuit Court was affirmed by Mr Justice Michael Hanna.

The Binghams made a series of complaints against Mr Sheehan to the Complaints and Client Relations Section of the Regulation Department (CCRC) of the Law Society of Ireland. Two complaints were investigated, but no finding of misconduct was made.

In July 2016, the Solicitors Disciplinary Tribunal found that Mr Sheehan was guilty of misconduct “morally culpable or otherwise of a disgraceful kind” in respect of a complaint made by the Binghams relating to Mr Sheehan’s threat to destroy their file unless they settled his bill of costs. He appealed to the High Court under s.7 of the Solicitors (Amendment) Act 1960 (as amended) and Order 53 of the Rules of the Superior Courts.

He contended that the Tribunal lacked jurisdiction to entertain the complaint, and he challenged the finding of misconduct on its merits. The High Court rejected his appeal on the merits and directed that there be a separate hearing of his jurisdictional challenge. The judge thought it inappropriate for the Binghams, who were not legally represented, to be sole respondents to arguments which were of relevance to the solicitors’ profession as a whole, and sought the involvement in the proceedings of the Tribunal and the Law Society.

The High Court dismissed the appeal on the grounds that Mr Sheehan failed to pursue the jurisdictional challenge by way of an application for judicial review, and that he had “acquiesced in and waived his entitlement to raise, or rely upon, his jurisdictional challenge”. He then appealed to the Court of Appeal.

Mr Sheehan argued that the scope of the appeal provided in section 7(11) encompassed his jurisdictional challenge to the Tribunal. The High Court may rescind, or vary, the order of the Tribunal or “confirm that it was proper” for the Tribunal to make the order. His argument was that the High Court could not confirm that it was proper for the Tribunal to make the order appealed against if the Tribunal had no jurisdiction to make the order. He submitted that the statutory appeal required that the High Court be satisfied that the Tribunal had jurisdiction.

Conclusion

The Court of Appeal dismissed his appeal. Ms Justice Caroline Costello noted that “the files of the Binghams were their property and, as such, he had no right to destroy the files, particularly in circumstances where they sought their return and forbid the destruction of the files”. No lien existed as his action was dismissed and he had withdrawn his appeal. He linked the demand for payment with a threat to destroy files over which he had no lien, and where the client objected and sought the return of the files. “He would never have been entitled to destroy the files in the circumstances. The email was a threat to destroy the property of a client with a view to extracting payment which was not, in fact, due to him. This is professional misconduct on the part of a solicitor.”

Ms Justice Costello said that the challenge to the Tribunal’s jurisdiction could not be brought within the scope of the appeal to the High Court and ought to have been brought by way of judicial review. Further, he had “acquiesced to the Tribunal conducting the inquiry and, thereby, waived his entitlement to challenge the jurisdiction of the Tribunal subsequently”.